Chepter 1

Intoduction
Summary of the Chapter

0.0. Introduction
1.0. Origin of Concept (Status of the Child)
1.1. Middle Ages
1.1.1. English Law
1.1.2. Mohammadan Law
1.1.3. Hindu Law
1.2 Modern Time - Era of legislation
1.2.1. France
1.2.2. Germany
1.2.3. USA
1.2.4. Communist World
1.3. Concept of legitimation
1.3.1. Conferring the status of Legitimacy
1.3.1.1. Elevation of Status
1.3.1.1.1, Subsequent Marriage
1.3.1.1.2. Legitimation by Acknowledgement
1.4. Adoption
1.4.1. Hindu Law
1.4.2. Roman Law
1.4.3. Legislation on Adoption in Modern world
 5
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Chapter 1
Introduction

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Rigved 10th Mandal

184 Sukt

“ May Vishnu (the presiding deity of ether and nerve force) expand thy uterus, may
Tvashta (the presiding deity of head and metabolism) bring about the full
differentiation of the limbs and the sex of the foetus, may Prajapati (the presiding
deity of the ovum) sprinkle thy uterus and mayst thou conceive through the blessings
of the Lord of Human destiny. May Sarasvati (goddess of intellect) and the Ashvins,
the Surgeons of the gods (the presiding deity of fission) help thee in taking the seed.”

Origin of Concept [Status of childl

For any society, childhood is an opportunity through which a man attempts to realize
its vision. In every religion child is considered as the incarnation of divinity and its
bringing up in a congenial atmosphere is not only a social intervention or cultural
reconstruction but also a religions perception and moral duty.

In the past we may discern considerable variation between and within cultures about
the social image of the child, yet we cannot ignore the past that it draws its status from
the parents and that natural right of the child cannot be denied.
 6

Illegitimacy has not always been a social problem only. It has been a personal
problem, a family problem, a community problem, a religion problem and a legal
problem. The nation that illegitimacy is bad for society is distinct from and more
recent than these other problems. There was a time, before nineteenth century, when it
did not occur to middle class, educated men and women interested in questions of
social and individual well being that illegitimacy had to be measured, understood or
solved. People, who considered themselves respectable were, of course, concerned
about the birth and legal status of illegitimate children, and disapproved of illicit
heterosexual behaviour which an illegitimate pregnancy inevitable signalled. But it
took a particular constellation of intellectual and political development in late
eighteenth and early nineteenth centuries to make people start to think of illegitimacy
as more than an individual failling or an issue of concern for the legal community, to
think of it, intended as a problem of national and international significance.

The notion of birth, either legitimate or illegitimate is present in most known human
cultures. However illegitimacy can mean something different, or not mean as much,
to non-Europeans. Among the adult members of some contemporary aboriginal
communities, it makes people shame, if an adolescent girl has a baby, but it is even
more shameful for her to enter into a ‘not straight’ marriage, that is , marriage that
disregards traditional cultural laws governing who may marry whom? Some mothers
forbid their pregnant daughters to marry if the father is not a correct marriage
partner1, 2working class African-American women don’t necessarily view marriage
and the stable presence of a male head -of -household, as essential to the
maintenance of strong families and legal relationships.

One study found in a group of such mothers ‘an ideal’ of community based
independence involving shared care giving and not-marital partnership with men . In
Japan (where the category ‘illegitimate birth’ was invented only when European
system of registration were introduced in 1868) it is possible to indicate that someone
is the child of a concubine, but there is no equivalent of the English ‘bastered3’ Under
Jewish Law, the offspring of any marriage contracted between prohibited relatives

1 .Law of the Jews, Page 232-33.

2 Joseph Jackson, Law relating to children and young persons - 1st Edition - Page 131
3 Japanese Civil Code, Interpretation by Hayami, 1980 Page-397.
 7

such as between relatives by marriage, is deemed a mamzer, or illegitimate child4

Jewish law regarded extramarital (illegitimate) relationship as almost equivalent to
legitimate relationships, with the acknowledgement of the father being sufficient
proof of descent. A mamzer can be a bastered, but the Tulmud tends to limit the term
to the offspring of incest, adultery of forbidden marriage5. Any child of a Jewish
marriage, which is subsequently dissolved in a civil divorce, but not a religious
divorce, is considered illegitimate even when the woman remarriage6. 7

Before the middle Ages, illegitimacy was not strongly associated with immorality. In
ancient Roman society the terms used to distinguish between different classes of
illegitimate produced legal-not moral or social categories of person, and little shame
or secrecy was attached to illegitimate births. Illegitimacy primarily designated the
lack of father in the eyes of law. Being bom illegitimate was to exist outside, the web
of family rights and responsibilities and therefore to process less then full rights to the
support of a father. As the responsibility for the support of the illegitimate child in
pre-Christian Rome rested with the mother or her family and not the state,
n
illegitimacy was not viewed as a social problem . Ancient Greco-Roman
Construction of illegitimacy revolved around problems of inheritance and the
importance of passing on the family name through legitimate male heirs.

Middle Ages

In the Middle Ages illegitimacy was associated with both property transmission and a
religious concern for purity and until the end of eighteenth century sexual practices
were governed by Canonical law, the Christian pastoral and civil law. These codes
determined the division between licit and illicit sexual activity. A ‘deployment of
alliance ‘based on the system of rules defined what was permitted and what was
forbidden. Marriage, the fixation and development of kinship ties and transmission of
names and possessions were central to this alliance. Any child conceived or bom as a
consequence of illicit sex was not only legally problematic but inevitably tainted with
his parent’s sin of debauchery. In England,,the distinction between legitimate and

4 Laviticus Justinian Code 1994, Page 21,.

5 Universal Jewish Encyclopedia 1948, Page 309,376.
6 Josep Jackson, Law relating to children and young persons, 9th edition 1977 page 32.
7 Ibid 3, 4.
 8

illegitimate offspring was enshrined in the canon and common laws, and in provision
for the poor.

The English common law and Mohammedan Law have taken to the logical end the
notion that an illigitimate child has no status by calling him ‘fillius nullius’, no body’s
child, neither of the father nor of the mother.

English Law

In English law recognition of the natural parents was made under the Poor Laws
Acts: but then the parents were recognized to have certain obligations towards
Q
children and not rights . It was at equity that some rights of de facto parents in respect
to the illegitimate children were recognized. Sir George Jessel, M.R. said: “In equity
regards was always had to mother, putative father.......”9. Lord Herschell said that in
regard to an illegitimate child it was only the desire of the mother that was
considered10. Cockburn, C.J., said that the ‘father of an illegitimate child is not
recognized by the law of England as to civil purposes*11. Before 1925 the putative
father could be compelled to provide for maintenance of his children only under an
affiliation; order obtained by the mother under the bastardy12 laws. The mother was
bound to maintain her illegitimate children under statutes13. As late as 1955, Denning,
L. J. said: "The truth is that the law does not recognize the natural father at all”14.
That statement was made in connection with adoption statutes15. A year earlier
Viscount Simonds said that as it was in' 1857 so it is to-day a cardinal rule applicable
to all written instruments, wills, deeds or Acts of Parliament that 'child' prima facie
means 'lawful child' and," 'parent' means 'lawful parent16' Although 'the received
interpretation of the word, 'child' as propounded by the Court of Appeal17 was upset
by the House of Lords18 in respect to proceedings under the Matrimonial Causes
Act, 1950, the courts have not been able to go that far in other respects; not even
under;' the Guardianship of Infants Acts. In the matrimonial law the English law

8 English Common Law by Sir William Blackstone also National Assistance Act, 1948;Ss. .40 and 64(1).
9 R.v. Nash, (1893) 10Q.B,D.454.
10 Barpardo v. McHugh, (1891) A.C.7.
11 R.v. Brighton,(1861) 1 B. and S. 447.
12 The Bastardy Act, 1872, under which the putative father is made liable to pay weekly sum for the maintenance of any child
after affiliation proceedings.
13 The Obligation was further strengthened by the affiliation Proceedings Act, 1957 and by the National Assistance Act, 1948.
14 In re M. (1955) 2 All E.R.911.
15 The case arose as to the interpretation of the word,’parent’ in S.2(4) (a) Adoption Act.
16 Galloway v. Galloway (1954) 2 All E.R. (429) C.A.
17 Galloway v. Galloway (1955) 3 All E.R. (429).
18 House of Lords report 1956.
 9

has taken the full turn, but in guardianship proceedings the English law is still
hesitant, faltering.

The Matrimonial law has been doubly fortunate: the provisions of the Matrimonial
Causes Act were given progressive interpretation; and it has also the benediction of
another Royal Commission on Marriage and Divorce.

The English matrimonial law has taken a Ml turn: the putative father and illegitimate
children are recognized, the only condition is that the mother and the putative father
of the illegitimate children should be husband and wife to each other19. Pursuant to
the Report of the Royal Commission, the Matrimonial Proceedings (Children) Act,
1958, was passed which also recognizes step-parent and step-child for the purpose of
s, 26, Matrimonial Causes Act, provided the step-child has been accepted as that' of
the family by the step-parent20

The Putative father and illegitimate child have not been so fortunate under the
guardianship of Infants acts.

Doubts were first expressed in Re Caroll21 which took the view that the Acts were
confined to proceedings between parents In in re G . the court gave custody to the
natural mother as against the putative father; the case is clearly based on the right of
the natural mother of an illegitimate. Then came In re C. T. & Re J. T24. where
Roxemburg, J., in a very elaborate judgment, after discussing practically all the
authorities, came to conclusion that the "prima facie meaning of the terms 'mother'
and father" is not to be departed from unless compelling reason can be found in "the
statute for doing so”. And the learned Judge did not find any 'compelling reason'
anywhere in the Guardianship of Infants Act, 1925, to depart from the prima facie
meaning.

19 In 1845 in re Totley (1845) 7Q.B.596, Denmanm, L.J, observed: “The law does not contemplate illegitmay, the proper
description of a legitimate child is ‘child’”.Almost the same view was reaffirmed as late as 1954 by Viscount Simonds in
Gatlowway vs. Galloway (1954) 2 All E.R. 429 First break through was made in Langsworthy v. Langsworthy, 55 L.J.P.33.
the final break was made in Galloway v. Galloway, (1955) 3 All E.R. 429.
20 Matrimonial Proceedings (Children) Act, 1958. Now re-enacted in the Matrimonial Causes Act,1965.
21 (1931) I KB 317.
22 In fact the court held that putative father is no body and has no say in the proceedings under the Act,
23 (1956) 2 All E.R. ,876.
24 (1956) 2 All E.R. 500.
 10

The Legitimacy Act, 1959, now, purports to apply the Guardianship of Infants Acts25
to illegitimate children.

*)f\

In re Caroll the putative father did not figure anywhere in the proceedings. But in In-
re A27., the putative father desired to have the custody of the child as against the
mother who desired to have the custody of the child with a view to give it away in
adoption. Declining to give custody to the mother Sir Reymond Evershed, M, R.,
said that if the mother's wishes of giving away the child were to be fulfilled, it would
mean the total 'Abandonment and extinguishment for all practical purposes of all the
natural rights towards the child'. This was a case under the inherent jurisdiction of the
Chancery Division.

The courts have consistently taken the view that under the Adoption Acts, the word,
'parent' does not include a putative father28, and have declined to give custody to the
putative father as against the mother who has desired to give away the child in
adoption.

The decisions in adoption cases imply that if a legitimate child is proposed to be given
in adoption, any parent can veto it, as consent of both the parents is necessary, but if
an illegitimate child is proposed to be given in adoption, only parent whose consent is
necessary is the mother and the putative father cannot veto it, though the court may
decline to pass an adoption order, if considers it desirable in the welfare of the child.
Under the Hindu law also, the putative father is no body if the mother desires to give
away her child in adoption and under Hindu law the power of the mother is absolute,
as no order of the court is necessary .

Mohammedan law

Under Mohammedan law also an illegitimate child is considered as nullius filius,

owning no nasab to either parent. Mohammedan law does not recognize the putative

25 Guardianship of Infants Act. 1886 (Sec 5), and S 16 of the Administration of Justice Act, 1928 have been made applicable to
proceedings in respect to illegitimate children.
26 (1931) I.K.B. 317.
27 (1955) Vol. 2 All E.R. 202.
28 InreM. (1955)2 All E..R. 911. In re-0 (1964) Western Law reporter, vol.2. page 840 1964..
29 The Hindu Adoption and maintenance Act, 1956, S.9.
 11

father for any purpose and therefore the putative father has no right of guardianship or
custody over his illegitimate children30. Thus, Mohammedan law also carries the
notion of nullius filius to its logical conclusion by laying down that an illegitimate
child is neither a child of his father nor of his mother. Under Mohammedan law
neither parent has any obligation to provide maintenance for such a child . Shia law
is very explicit on this point. In comparison to the Shia law, the Hanafi law may be
considered as liberal, as an illegitimate child is considered related to the mother and
mutual rights of inheritance of the child and mother are recognized32. That continued
to be the position of the illegitimate child both in India and Pakistan. Only
ameliorating feature of Mohammedan law is that provisions relating to paternity are
it

extremely liberal .

Hindu Law

In Hindu law the illegitimate child and putative father and natural mother have never
been considered as strangers to each other. The putative father of a dasiputra can
exercise all paternal power over the illegitimate child and he can exercise some
control over the mother. Before and after 1955 the mother has been recognized as the
natural guardian of her illegitimate children. During the life-time of the mother the
putative father was not entitled to guardianship of the illegitimate children, though his
obligation to maintain them has always been recognized34. However in certain cases a
different view was taken. In Prem Kumar Vs. Benarsidas,35 the court took the view
that since the putative father has an obligation to maintain his children, that obligation
entitled him to the custody of his children. Of course, if mother herself places the
children in the custody of the putative father and allows him to bring them up, then
the court would not enforce her right of guardianship or custody to the prejudice of
the children36.

30 Baillie II, 14; Macnaughten : Principles of Mohemmedan Law, Page .298:

31 Baillie II, 14.
32 Baillie 1,439.
33 Mohammedan Jurisprudence by Abdul Rahm, p.341.
34 Rig. Ved. 1.64,14.
35 Prem Kumar V/s Banarasi Das (1934) 15 Lahore . 630.,
36 Lai Das vs. Nenunjo, (1879) 4 Cal. 374; Kariadas Vs. Koyat, (1896) 19 mad. 461.
 12

The modem Hindu law recognizes the putative father as natural guardian of his
illegitimate children after the death of the mother.37 His obligation to maintain them
has now been given statutory recognition .

Under Hindu law an illegitimate child has never been considered as fiUius nulius. In
some cases he has been considered to be a member of the family. Illegitimate sons
under Hindu law may be classified under two heads: (a) an illegitimate son born of
casual connection, and (b) an illegitimate son born of a dasi i.e. of a permanently and
exclusively kept concubine. Though the texts are not very clear but daughters may
also be classified similarly. Then the former category was not considered to be the
member of the father's family. But he was entitled to maintenance against the father .
The same to, be the position of the daughter.

The illegitimate son of a dasi known as dasiputra was considered to be a member of

his father's family, though not as a coparcener, and he has full rights of maintenance40.
The dasiputra among the Sudras enjoyed still a higher place. His position is covered
by special texts41. An illegitimate son has the status of a son and he is a member of his
father's family42, although his rights are limited as compared to a legitimate son. He
has no Birth-right in the family and consequently he is not a coparcener and cannot
ask for partition. During the life-time of the father if partition takes place it depends
upon the father's choice as to what share he would get43. But on the death of the
father, his position is that of a coparcener along with the legitimate son. He had both
the rights of partition and survivorship. On the death of the legitimate son he takes the
entire property. In the event of the death of the father leaving behind a widow,
daughter or daughter's son, he is entitled to half a share. If none of the females is
there, then he takes the entire property44.

37 Hindu Minority and Gaurdianship Act. 1956, S.6.

38 Hindu Maintenance and Adoption Act, 1956, S.20.
39 Rahi Vs. Govind Bom, (97) Parichat Vs. Balim singh, (1879) 159; Muttuswami Vs. Vencatasware (1868) 12 Madras
203;Kuppa Vs. Singsvelu, 8 Mad. 325; Chamaya Vs. Irya, 1931 Bom-492.
40 Mitakshara, ©,12,3.
41 Manu IX, 179; Yajnavalkya, II, 133-134; Mitakshara, 1,12; Dayabhaga, IX, 28; Mayukha, IV, iv, 29-31; Dattaka
Chandrika.V,30,31.
42 Vellaiyappa chetty vs. Natarajan, 1931 P.C. 294 at 298; GurNarayan Das Vs. GurTahal Das, 1952 S.C.R.869.
43 Ibid, 41.
44 Singhai Ajit Kumar vs. Uyayar, 1961 S.C. 1334.
 13

The Dasiputra is entitled to a share in the inheritance of his father as a member of his
father's family, in his status as a son and not merely in lieu of maintenance45. If a
sudra dies leaving behind a widow and an illegitimate son, both share equally46. On
the death of the widow, he succeeds to the half share taken by the widow47. Only
distinction that exists between him and a legitimate son is that on partition he takes
only half a share of what he would have taken had he been a legitimate son48.

A dasiputra is entitled to maintenance so long as he lives and he is entitled to full

maintenance and not merely compassionate maintenance in recognition of his status
as the member of his father's family and by reason of his exclusion from inheritance
among the regenerate classes49. A dasiputra is entitled to maintenance even if at the
time of his conception his mother was a married woman whose husband was alive and
therefore her connection with the putative father was adulterous50.

Though the case of an illegitimate daughter is not covered, but it seems that she is
entitled to maintenance till she is married, and her marriage is also the responsibility
of her putative father51.

Under the modem Hindu law, the position of dasiputra has deteriorated. From the
point of maintenance, all legitimate and illegitimate children have been put at par.
Every Hindu male or female has an obligation to maintain legitimate and illegitimate
children . The obligation comes to an end on the child's attaining majority . But
under the modem law the dasiputra cannot claim maintenance beyond his minority.
Further, an illegitimate child, son or daughter, of any class is not entitled as an heir to
inherit any property of his or her father (in fact now classes do not exist for the

45 Vallaiyappa Chetty vs. Natarajan 1931. P.C. 294.

46 Kamulammal vs. Visvanathaswami, 1923 P.C.S.
47 Singhai Ajit Kumar vs. Uyayar, 1961 S.C. 1334.
48 Jogender vs. Nittanund, (1891) 18 cal. 151 (P.C.).
49 Ratnaraja Kumar Vs. Narayana Rao, 1953 S.C. 433; Ammireddi Vs. Ammiredy, 1961 A.P. 131 : the decision is confirmed by
the supreme Court in 1965 S.C. 1970
50 Ammireddy Vs. Ammireddy, 1965 S.C. 1970 :Yajnavalkya in XXIV ,290 lays down that any person who would intercourse
with dasis and others who are avarudha or bhudishya is liable to a fine of fifty panas. Vijayaneshwar in his comments on
this verse explains the term, avarudha, as a woman ‘prohibited’ by the master from intercourse with other men with an
injunction to stay at home with the object of avoiding any lapse of service;. He explains bhujishya as a woman ‘restricted
in the matter of sexual intercourse to certain persons;. According to Viijnaneshwar even veshya (harlots),, swairinis
(wanton woman) and sadharanastris(common prostitutes) who are bhujishyas are included and then adds:”Having been kept
by another, they are as good as his wives.” In support of this view he cites a text of Narada. Akku Prahalad vs. Ganesh
Prahalad, 1945 Bom. 217 where the matter is fully discussed
51 Vellaiyappa v Natrajan, 581,1.A. 407
52 Hindu Adoption and Maintenance Act. S.20(I)
53 Ibid., S.20(2)
 14

purpose of inheritance54). An illegitimate child now inherits only the property of its
mother55.

In Roman law the position of an illegitimate child has not been uniform in its different
periods of development. In early Roman law, the illegitimate child had no family, no
country, no name, no ancestor and no god; he was under the potestas of no one. He
had neither a father nor a mother. However, he was not made a non-entity because of
any idea of sin was involved in procreating such children, but'the Roman family, the
Roman society and the Roman state were constituted in such a manner that he did not
fit in anywhere: In an agnatic Roman family such a child could not be related to the
father, and, legally speaking, a woman under Roman law could not have any
descendants and therefore he could not be related to his mother.

With the emergence of the theory of cognation under the influence of the natural law,
all children, whether legitimate or illegitimate, became cognated to their mother,
having rights of maintenance and succession in the property of the mother, Thus, the
illegitimate children were given the status of the mother56. This continued to be the
position till the end of the Roman period57.

Before the advent of Christian influence, obligation of the putative father to provide
for the aliment was also recognized and the putative father could make gifts to his
illegitimate children.

With the coming into power of the Christian Emperors and the ideas of Christian
morality, the institutions of concubinage and illegitimate children became a horror, an
enigma. The first talk with Constantine assigned to himself was to discourage
concubinage. Pursuant to that, he forbade all gifts to illegitimate children by the
putative father. The rights of aliment and of succession of illegitimate children were
also done away with.

54 Under the Hindu Succession Act, 1956, in respect to inheritance to a Hindu male only legitimate relationship is recognized:
S.3(j)
55 Hindu Marriage act, 1955 , proviso to S.3(j)
56 Gaius, I. 83-85 [Lectures of the Justinian Institute,-I. Page-83-85.
57 By the Lex Minicia modified his rule by laying down that if one parent was a peregrine and the other a citizen, the issue
Would have an inferior status. But this was in turn modified by a senatus consultum of the Emperor Hadrian which again
laid down that in such a case, the child will have the status of mother
 15

After Constantine, we find that only two categories of illegitimate children-adulterine

and incestuous-were denied all rights, while others were granted several rights against
the putative father. Their right of aliment was recognized. The putative father could
also make some gift of his property58.

In the times of Justinian we find that the position of illegitimate children (liberi
naturales) comes very near to that of a dasiputra of a sudra under Hindu law. The
Liberi naturales have the right of support against both parents, right of succession in
the mother's property and right of partial succession in the property of the father59.
Apart from liberi naturales, the other illegitimate children were not recognized.

Modern Time, Era of Legislation

The doctrines which gave birth to the French Revolution proclaimed. "That all men
are equally free and independent". The first thing which the Convention did after the
French Revolution was to uplift the illegitimate child. The law of 12 brumaire, with
the exception of adulterine children, put all illegitimate children at par with legitimate
children, with equal right of maintenance and succession and with equal status in the
family. The adulterine children were given full rights of maintenance and were
entitled to 1/3 of what they would have got had they been legitimate children. The
parents were free to make any gift to them. Thus, we find that for the first time in
Europe-or rather first time in the entire West the illegitimate child was considered as a
member of the family of his father: in fact for the first time he existed in the family.

This 'radical' legislation did not find favour with the framer of the French Civil Code
and he is relegated to an inferior legal position. Apart from the filiation or recognition
of the child which raises their status to almost legitimate children/ the illegitimate
children60, are only entitled to aliment which should be in accordance with the social

58 He could give 1/12 of his property and in case he has no legitimate child, upto !4 of property
59 On failure of legitimate child, the father could give upto 1/2, and he could inherit upto 1/6 of the property
60 This entitled the child to maintenance, to the use of the name of the parent to whom it is filiated or who has recognized him,
the rights of mutual succession. But the child’s right of succession is restricted to parents: he cannot succeed to ascendants
or collaterals or his parents. S. 16 of the Hindu Marriage act, 1955, is to the same effect.
 16

position and station of-the-parents61. Such rights are conferred on the adulterine and
incestuous illegitimate children also62,

Germany

The German Civil Code provides: "The illegitimate child has in relation to the
mother and to the relatives of the mother the legal position, of a legitimate child
The status of legitimacy may be conferred by governmental declaration64. Apart from
this, if parenthood is established by a judicial decree or by voluntary recognition, the
child has the right to support and maintenance65. The father is bound to support the
child till the completion of sixteenth year corresponding to the conditions of the
mother in life and including maintenance, education and training66. The father's duty
to provide maintenance precedes that of the mother .

The most radical provisions among the non-communist countries of Europe are
contained in the Norwegian law of 1915. Under that law the status of an illegitimate
child in respect to both the parents is the same an illegitimate child is entitled to the
name of both parents, he is. entitled to maintenance, education, training and support
from both. The type of education and training that a child may have is determined by
the situation of financially better placed parent68.

U.S.A.

Probably the most radical law in the non-communist world is found in some of the
states of the United States. Arizonian law of 1921 provides "Every child is hereby
declared to be the legitimate child of its natural parents and as such is entitled to
support and education to the same extent as if it has been bom in lawful wedlock. It
shall inherit from its natural parents and from their kindred heirs lineal and collateral
in the same manner as children bom in lawful wedlock." If the father is married to

61Article 762
62 Article 763
63 S. 1715 German Civil Code.
64 S.1723
65 Ss. 1717.-1718
66 section 1708
67 S 1709: If the mother has paid for the maintenance of the child she has the right to subrogation. The claim may be satisfied by
triennial payment (S. 1710); the claim continued against the estate (S 1711).
68 Norwegian Law of Illegitimacy, (1918)
 17

another' woman, only difference that exists is that the child cannot claim to live with
him. The state of North Dakota has similar law. Under the law of, Mississippi, a
recognized illegitimate child is placed at par with a legitimate child. Other states
follow the English common law. A decision of the New York Court puts it very
tersely: "Illegitimate children are not favoured by law and have only such property
rights as are expressly granted by statute69”. The New York Domestic Law recognizes
the right of support and education of illegitimate children70.

Communist World

Probably the most radical law in the communist world is .that of People's Republic
of China. Article 15 of the Marriage Law provides: "Children bom out of wedlock
shall enjoy the same rights as children bom in lawful wedlock." No person shall be
allowed to harm or discriminate against, children’ bom out of wedlock." The second
para, of the Article runs : "Where the ' Petemity of a child bom out of wedlock is
legally established by the mother of the child or by other witnesses or by other
material evidence, the identified father must bear the whole or part of the cost of
maintenance, and education of the child until it has attained the age of eighteen." Para
third runs: "With the consent of the natural mother, the natural father may have the
custody of the child. Thus, the distinction between legitimate and illegitimate children
is attempted to be done away with.

U.S.S.R.

Equally radical has been the law of Soviet Union. Soon after the revolution, it has
been the policy of Soviet Governments to remove all legal distinctions and differences
between the legitimate and illegitimate children71. Not merely this,' the governments
purported to wipe out all social stigma attached to illegitimacy and it was a duty
imposed on the courts to see this policy succeeded. The 1918 Code imposed a duty on
the putative father to provide maintenance to the illegitimate children . The 1944 law

69 Bell v. Terry & Trench Co., 163 N.Y. Supp. 733

70 S. 120 New York Domestic Law
71 Union of soviet, Socialist Russia Code of 1918, Article 133.
72 In the early period of the implementation of the law. It seems that the courts have been more interested in finding out a person
who could be saddled with the responsibility of the maintenance of the child, irrespective of the fact whether he was found to
be in fact the putative father of the child .Article 144 provided that when several persons had relations with the mother during
 18

abolished the duty of providing maintenance to illegitimate child of the putative father
which was replaced by the State duty of providing education, maintenance 'etc. for
such children.

Concept of Legitimation

'The process of blurring distinction and differences between legitimate and

illegitimate children has begun at a fairly early time.

Conferring the Status of Legitimacy

One method has been to confer status of legitimacy on children bom under certain
circumstances and could not ordinarily be legitimate children. The early Hindu, law
recognized a class of sons known as 'secondary sons'. In some of these cases the
father was not at all responsible for their birth: they were Kanina, Sahoda, krita,
punnarbhava, svayam-datta and shaudra. Of these only the punnarbhava and shaudra
were the sons begotten by the father. Even among the 'primary sons' he was not
responsible for the birth of a majority of them. For instance, the khetraja, the dattaka,
Kritima, were not begotten by him, but in a sense he had accepted them himself as his
sons, and therefore they were considered to be his Sons and given the status of
primary sons . In a majority of cases these children were bom out of lawful wedlock.
In the later development of Hindu law all of them became obsolete and were not
recognized with the exception of aurasa, i.e., the legitimate son begotten by one on his
lawfully wedded wife, and the dattaka son or adopted son.

In the modem law also this method of conferring the status of legitimacy; on children
bom in certain circumstances have been used. Certain children born of invalid
marriage have also have been made legitimate children by legislation. Take for
instance under the Matrimonial Causes Act, 1950, the child of voidable marriages

the period of conception, the court might declare all of the persons as liable to support the child. However, this was soon
found to be defective and it made no person wholly responsible. This No. 358(1930)10 Su. Prak . RSFSR 19 where two
persons have intercourse with the mother on the same night, resulting in pregnancy: the court choose, one of them. Hazard:
Law and the social change in U.S.S.R. , Page 250
73 Manu Smriti Vol. V, 159-i60(Dr. Jha’s Translation, Page 145); Also for texts in other smritis : Dr. Jha’s Manu Smriti,
Comparative Notes, Part III, Verses 2, 132 (Vajnavalkava)
 19

which are annulled have been recognized as legitimate children74. Under the
Legitimacy Act, 1959, the children of a void marriage have also been recognized as
legitimate children provided at the time of the 'act of intercourse resulting in the birth
[or at the time of celebration of marriage if later], both or either of the parties
reasonably believed that the marriage was Valid75. The Hindu Marriage Act, 1955,
also confers status of legitimacy on the child of voidable marriages which are
annulled and the child of void marriages which are declared null and void . But on
such children an inferior status has been conferred is as much as it has been laid down
that such children can inherit the property of the parents alone and of none else77. The
same is the position under the Special Marriage Act, 195478.

Elevation of Status

Another method of elevating the status of illegitimate children to that of the

legitimate children came into existence in Roman law known by the name of
legitimation per subsequens matrimonium. The rule was first introduced by
Constantine in A. D. 335 as one of the methods to do away with the institution of
concubinage79. According to Justinian legitimation by subsequent marriage was
possible whether the concubine was ingenua or libertina provided the marriage was
attested by instrumentum dotis or other writing, the woman was capable of marriage
at the conception or birth and the child, if consented . The other methods known to
Roman law by which an illegitimate child could be legitimated were legitimation by
o1 Q'y
imperial rescript and legitimation by presentation to the curia .

Subsequent Marriage

The institution of legitimation by subsequent marriage of parents descended from

Roman law to the Continental Europe. Under the French Civil Code illegitimate
children may be legitimated by the subsequent marriage of their parents provided the

74 Matrimonial Cases Act S.9 1950.

75 S.2. Legitimacy Act 1959.
76. S.16 Hindu Marriage Act 1955.
77. Proviso to S. 16
78 Section 26 : the language of S. 16. Hindu Marriage At, 1955 and this section is identical
79 Originally it applied to a concubine who was ingdnue. Emperor Zeno abrogated it. Justinian restored it: Code. 5,27,10.
80 Ulpian Code ,5,27,8,10,11
81 Ibid-80
82 Ibid-80
 20

children were recognized before marriage83. The institutions of ligitimation by

subsequent marriage of parents is also recognized in Germany84, Italy85, Spain86,
Japan87 and some of the states of United States of America88. Some states of South
America also recognize the institution.

Although in Scot law the rule came into existence at an early time89, in English law,
legitimation by subsequent marriage of parents came into existence by the Legitimacy
Act, 1926. Under the Act. It is necessary that the father is domiciled in England or
Wales at the time of marriage90. The provision does not apply to children of
adulterous unions91. The Royal Commission on Marriage and Divorce by majority
recommendation declined to extend the provision to the children bom of adulterous
union as, according to the majority Report it would 'result in a serious weakening of
respect for "marriage ”.

In Indian law, or in the personal law of any community in India, legitimation by

subsequent marriage of parents is not recognized.

On the pattern of the Roman legitimatio per rescriptum principis legitimation by

acknowledgment or recognition is recognized in several systems of 'law. In several
states of Continental Europe, South America and in some of, the States of the United
States of America a putative father is permitted to legitimate his child by formally
recognizing it to be his own son. The law of Spain and Italy provide for legitimation
by royal rescript93. Under English law also Parliament can by passing a law legitimate
a child94.

Under the French law either parent or both the parents may recognize the child. The
effect recognition is that the child gets the right to use the name of the parent

83 Article 331 Franch Civil Code.

84 S. 1719-22, German Civil Code
85 Civil Code, 194 Italian Civil Code
86 Civil code 120 Spenish Civil Code
87 Civil code, 836 Japanese
88 Albania, Indiana, Kentucky, Massachusettes, New York, Ohio, Pennsylvania, Taxes, Vermont, Virginia
89 Mackenzie Roman Law, Page -.130;
90 S. 1 (1) English Legitimacy Act 1926
91 Ibid
92 Para 1179 Royal commission Report on Marriage and Divorce.
93 Italian Civil code, 194 Spanish Civil code, 120
94 The one outstanding example (and probably the sole) is the statute of Richard II conferring legitimacy on children of John of
Gaunt
 21

recognizing him; the child has the right of maintenance. The parent and the child also
have mutual rights of succession95. But the child cannot succeed to the property of
the parent's ascendants or his collateral other than his natural sibs. However,
recognition cannot be made for the benefit of an adulterine or incestuous child. Thus,
a recognized child is very much near a legitimate child, though he has slightly inferior
status96.

Under the German Civil Code a father who states in his petition that he recognizes the
child as his own may obtain a governmental declaration declaring an illegitimate child
as legitimate97. Under the Code it is immaterial that in fact the petitioner is not the
father of the child98 but in every consent, of the guardian or the child and also of the
mother, if the child under twenty-one, is necessary99. However, such a declaration
cannot be made if at the time of conception of the child the marriage of its parents
could not legally take place100.

It is interesting to note that the provision of recognition of illegitimate children under

the 1964 Code of Family Law of Communist Poland are very much akin to the
German Civil Code. Under the Polish Code a child recognized by the putative father
is approximated to the status of a legitimate child. The Code provides a prescribed
form and consent of the mother or guardian is also necessary101.

Mohammedan law confers legitimacy on a child by acknowledgment of him as his

child by the father. The Muslim doctrine applies to cases where the legitimacy of a
child is uncertain. If he is known to be an illegitimate, child, the doctrine does not
apply. In other words it applies only to case, where either the fact or the exact time of
the alleged marriage is a matter of uncertainty that is neither proved nor disproved102.
It is required that the acknowledgment must be not merely as a child but as a
legitimate child, the age of the child and the person acknowledging should be such as
to admit of the acknowledger being the father of the child, the child must not be an

95 Articles 332-336 French Civil Code.

96 Article 335 Ibid-95.
97 Their position resembles with children under s. 16 Hindu Marriage Act
98 SS. 1736 and 1725 German Civil Code
99 S. 1735 Ibid
100 S. 1726 Ibid
101 A recognized held under the code acquires all the rights of a legitimate child S 1736
102 Bailie 406: Hedaya, 439; Md. Alladad Vs. Muhammad, (1888) 10 All 289
 22

offspring of zina, incest or fornication, the child acknowledged must not be known to
be the child of another and the acknowledgment must not be repudiated by the
child103.

1. Hindu Law

Originally, when adoption came into existence in Hindu law or Roman law, the
purpose was certainly not to confer the status of legitimacy on illegitimate children.
Its main purpose was to continue the family by means of all; artificial relationship, or
to confer spiritual benefit104. Thus, the institution of adoption fall in the realm of
private law. Even in the modem law that continued to be one of the chief purposes of
the adoption, though another; purpose is coming up: the purpose of conferring status
of legitimacy on illegitimate children and of providing home for the homeless. The
former seems to be the main purpose even under the Modem Hindu law, while the
latter seems to be the main purpose of adoption in the Soviet law..

Under the old Hindu law only a male Hindu could adopt and an orphan child could
not be adopted105. Then there were the restrictions of caste and gotram,

Female child could not be adopted107. Under the old Hindu law only the male Hindu
had the right to make an adoption and the consent or dissent of the wife to the
1 AO

proposed adoption was immaterial . Only a sonless Hindu male could adopt and
only one son could be adopted109.

Under the modem Hindu law110, every Hindu, male or female, has capacity to make
an adoption provided he or she has attained the age of majority and is of sound
mind111. A Hindu married male can adopt only with the conscent of his wife112. A

103 Bailie 408: Hedaya, 408; Habibur Rehman Vs. Altaf ali, (1921) 481.A. 114
104 Mayne : Hindu law (11th Eddition) Page 184-88, where the entire matter is discussed, Religious motive was at least one of
the considerations
105 Vasishta said :”Not let a woman give or accept a son unless with the assent of her lord.” (XV, 1-6). Paras Diwan. Adoption
of an Orphan under Hindu law, The Law review (1963) XV No. 1 where all the texts have been discussed. Manu IX 168;
Yajnavalkya, II131, Baudhayana, II 2,3,20, Vishnu, XV, 19; VasisthaXVII, 28-29
106 Dattaka Mimansa, II. 74; Matakshara, I.XI, 9; Mayukha IV,5,9; Dattaka Chanrika, 1,16
107 Gangabai Vs. ananta, 13, Bom, 690; Guddatti Vs. Ganapati, 23 M.L.J.493, Ganguly Vs. Sarkaa, 1961 M.P. 173
108 Dattaka Mimamsa, 1.22; Sountharapandian Vs. Pariaveera, 1933 Mad. 550 (F.B.); rungamma Vs. Atchamma, (1846) 4
M.I.A. I.
109 Dattaka Mimansa, 1,4,13; Dattaka chandrika, 1,4,6
110 Hindu Adoption and Maintenance Act, 1956
111 Hindu Adoption and Maintenance Act, S 8 (a), 8 (b), and S.7
 23

bachelor, widower, virgin or widow can make an adoption But a married woman
cannot adopt even with the consent of the husband113. A married woman can adopt
during the life-time of her husband and a married Hindu male can adopt without the
consent of his wife if the husband or wife, as the case may be, has ceased to be a
Hindu, has completely and finally renounced the world or has been declared by a
court to be of unsound minds114. An adoption of a male child can be made only when
the adopter has no Hindu son, son's son, or sons' son's son, and adoption of a female
child can be made only when there is no Hindu daughter or son's daughter115. When
the child of opposite sex is adopted the adopter must be senior by at least twenty-one
years to the child.116

During the life-time of the father he alone has the right to give the child in adoption
though consent of the wife is necessary117. After the death of the husband, or if the
husband has ceased to be a Hindu or has renounced the world or is of unsound mind,
the mother of the child can give the child in adoption118. After the death of the
parents, the guardian can give the child in adoption119. The term guardian has been so
defined so as to include a de facto guardian120.

Under Hindu law for any proposed adoption no order of the court is necessary. Only
in case when a guardian gives the child in adoption prior permission of the court is
necessary and no court would accord permission unless it finds that the proposed
adoption would be for the welfare of the child121.

Only a Hindu child can be adopted . An already adopted child cannot be adopted .
The child must be below fifteen and unmarried unless a custom permits the adoption
of an older or married child124. The same child cannot be simultaneously adopted by

112 Proviso to S.7 Ibid

113 Section 8 (c) Ibid
114 Proviso to S.7, & S.8(c) Ibid
115 Section 11 (i) and (ii)
116 Clauses (iii) & (iv) of S-11, only relationship by legitimate blood and adoption is recognized
117 S.9(2) Ibid
118 S.9(3 Ibid
119 S.9(4) Ibid
120 This has been done by the Hindu Adoption and Maintenance Act, 1962. Now Clause I (a) to Explanation to s.9.
121 S.9(4). Ibid
122 S.IO(i) Ibid
123 S.10(ii) Ibid
124 S.10,(iii) & (iv) Hindu Adoption and Maintenance Act 1956
 24

two or more persons125. An orphan can be adopted. Any legitimate or illegitimate

child who has been abandoned by his parents or a child whose parentage is not known
can also be taken in adoption126. Consent of the child is not necessary.

The result of adoption is that for all intents and purposes the child becomes the child
of the adoptive family his position is that of a born son in the adoptive family; which
implies that he can not only inherit his parents but from all other relations in his new
family127. On the hand, his relationship with his natural family comes to an end128.

Thus, a Hindu cannot adopt more than a son and daughter consent of the child is not
necessary; nor an order of the court is necessary. Thus it seems that the concept of
adoption under Hindu law continues to the transfer of dominion from one person to
another. The basic purpose' adoption is to perpetuate the line by creating artificial
relationship. Only advance that has been made is that now illegitimate children,
orphans, abandoned children and children whose parentage is not known can also be
adopted.

2. Roman Law

Under Roman law also the purpose of adoption was to continue family by means of
artificial relationship, and thus adoption was a source power. Adoptio in Roman law
meant the transfer of dominium from one person to another and therefore , adoption
could be made only of a alieni juris . However, Justinian enacted that adoption
ordinarily not confer any paternal power on the adopter130. Prior to Justinian the
adopted child had no right of succession in his natural family, though he succeeded in
his adoptive family. Justinian laid down that the child retained his right of succession
191
in his natural family .

125 S.ll(v) Ibid

126 S.2(bb) Ibid
127 S. 12 Ibid
128 ibid-127.
129 Gaius, 1,99; Inst. I,II,III Roman Law of Marriage
130 Justinian Code, 8,47,10
131 Ibid 130
 25

Until the later Roman law only a male had capacity to adopt, and females could not
make adoption. In A. D. 291 this power was conferred on females also . Justinian in
his institutes said: "Women cannot adopt, for not even their natural children are
subject to their power; but by Imperial clemency they are enabled to adopt, to comfort
them for the loss of children taken from them133”. The adopter was required to be
senior to the adopted child at least by eighteen years134. Then it was also required that
the adoption must also imitate nature. Thus in Cicero's time an unmarried man or even
a married man who had not yet lost all hopes of offspring could not adopt.

In early law the consent of the child was not necessary. Classical law is as to consent
of the child. It seems that express consent of the child needed even in the later Roman
law135. Under Roman law it was to adopt one's own child who was not in one's
potestas. An adoptive could not be re-adopted.

Roman law also recognized another form of adoption known as adrogatio was the
adoption of a person sui juris who was independent136. In the Roman law adrogation
could be accomplished only by a lex curiata. In later Roman law it could also be
accomplished by a will, though probably such an act needed confirmation by Comitia
Curiata. In Imperial Roman "Law and even in Justinian's time it was superseded by
rescript. On adrogation the child adrogated lost his independence and passed under
the power of adopter. If the child was below twenty-five, the consent of the guardian
was necessary.

Thus under Roman law also the adoption was primarily made to perpetuate one's line
by creating an artificial relationship.

From Roman law the institution of adoption spread to Babylonians, Greeks and
Egyptians and to the Continental Europe including Czarist Russia and to the countries
of South America and some of the States of the United States of America137, and

132 Justinian Code 8,47,5

133 Ibid 1,11,10
134 Ibid 1,2,4
135 Ibid 8,47,10
136 Gaius 1:99; Inst. 1,10,1. Sherman: Roman law in the Modem World, Vol. II, pp.83-91; Buckland’s Text Book on Roman
law, Page. 121-128.2ndEd
137 French Civil Code, 348-63; German Civil Code, 1741-1772; Italian Civil code, 202-19; Spanish Civil code, 173-9
 26

Japan138. The Civil codes basically follow Roman law and the institution of adoption
130
has the same purpose as it has m Roman Law .

Legislation on adoption in Modern World

Hitherto the purpose of law of adoption has hardly been the welfare of the child; nor
was it intended to benefit the illegitimate children. It is essentially meant for the
benefit of the childless person.

In England though de facto adoptions came into existence in the latter half of the
nineteenth century, legal adoption came into existence as late as 1926. The purpose of
the Adoption Act, 1926, was to prevent natural parents from claiming back their
children whom they have given in 'de facto adoption'.

Then a comprehensive statute was passed in 1950. Further modifications in the law
were made by the Adoption Act, 1958,’ section 13 (i) of which lays down: "Upon an
adoption order being made, all rights, duties, obligations and liabilities of the parents
or guardians of the infant in relation to the future custody, maintenance and education
of the infant, including all rights to appoint a guardian and to consent or give notice of
dissent to marriage shall be extinguished and shall vest in and be exercisable by and
enforceable against the adopter as if the infant were a child bom to the adopter in
lawful wedlock." English law of adoption comes very much near to Hindu law of
adoption in-as much as it lays down the child for all intents and purposes the adopted
child becomes like a natural child in the adoptive family and his ties in his natural
family are severed140. An adoption order can be made by the High Court, Country
Court or Magistrates' Court. The applicant should be domiciled and resident in
England. The child should also be resident in England141.

138 Japanese Civil Code, 837-76. In the states of Massachusetts, Indiana, Missouri, Louisana, California, Texas adoptions were
legally recognized at a fairly early period American Statute Law by stemson, 6640-51
139 Take for instance the age of adopter under German Civil Code is required to be at least eighteen (s. 1744); Under French
Civil code it should be at least fifteen years (Art 343), the same is under Spanish Civil code (Art 173); Japanese Code
provides that a relative in the ascending line or a person older than the adopter cannot be adopted (Art 838). In the matter of
succession rights of the child there is a marked similarity: German Code, 348,350; Japanese and German Codes give him
status of legitimate son of the adopter; German Civil code, 1757, 1764; Japanese Civil Code 860
140 The Act repeals the Adoption Act. 1950
141 Adoption Act, 1958, SS 16 and 17
 27

Under the Adoption Act, 1958, a child cannot be adopted simultaneously by two
persons unless they are husband and wife142. The adoption can be made by the mother
or the father of the child or by a relative of the child who is at least twenty-one years,
or by a third person who is at least twenty five years old143, when adoption is made
jointly by husband and wife both of them should be at least twenty-one years old144.
The Act also requires that the child should have been continuously in the care and
possession of the applicant at least consecutively for three months, immediately
preceding the presentation of the petition145. Consent of the parent or guardian of the
infant is necessary 146and if one; of the spouse is the applicant, the consent of the
other spouse is necessary147. If adoption is made in Scotland, the consent of the child
is also necessary148. In certain cases consent may be dispensed with149. Nothing can
be given or promised to be given or received or promised to be received in
consideration of giving or taking the child in adoption except such as the court may
sanction." No order shall be made unless the court finds that the proposed adoption
shall be for the welfare of the child." In finding out what is for the welfare of the child
the court would take into consideration the health of the applicant, and wishes of the
child, having regard to his age and under-standing150, The court can also make an
interim order of adoption giving custody of the child to the applicant for a period of
not exceeding two years by way of a probationary period upon such terms and
conditions as the court may deem fit in the interest of the child151.

When a child who has been adopted by the father or mother alone has been
subsequently legitimated on account of the subsequent marriage of his parents, then

142 Sub-section (i) and (5) of S.l; if the adopter intends to settle in England the requirement of his residence my be waived. It .
may be noted that it is not necessary that the child should be domiciled in England. This may give rise to some problems of
confliction of laws; Cheshire: Private International Law (sixth Ed); Page. 440-41
143 S.2 English Adoption Act 1958
144 Ibid, Clauses (a) and (b) of S.2 (1)
145 Ibid S. 2(2)
146 IbidS.3
147 Ibid S.4(l)(a)
148 Ibid S.4(l)(b)
149 Ibid S.4(l)
150 S.5(l). Lays down that the consent of a parent or a guardian may be dispensed with if he or she has abandoned, neglected or
persistently ill-treated to child or cannot be found or is incapable of giving his consent or it withholding the consent
unreasonably. Under S. 5(2) the consent of the parent or guardian may also be dispensed with if he has persistently failed
without reasonable cause to discharge the obligation of a parent or guardian. Under S 5(4) the consent of the other spouse
ay be dispensed with if he or she cannot be found or is incapable of giving his consent or that the spouses have separated
and are living apart. Sub-sections (1) and (2) are in pursuant to the recommendations of the 1954 Report of the
departmental committee on the adoption of Children
151 Ibid S.7(l)(a)
 28

on the application of any party concerned, the adoption order can be revoked1'2.
Otherwise the adoption order once made is final and irrevocable.

Some of the most important provisions of the Act, it is submitted, are those which
related to the role of local authorities and adoption societies and provisions relating to
care possession of infants awaiting adoption and provisions relating to supervision of
children awaiting adoption or placed with strangers153. In the modem law of adoption
such of the United States and now also of England great importance is attached to
social investigation by properly qualified officers into the circumstances of the
adoption154.

Immediately after the Revolution adoption was abolished155 from the Soviet law, but
from March 1, 1926156 it is reintroduced. The present law requires that the child
should be less than eighteen years the consent of the parent should be obtained,
though it may be dispensed with if the parent has been deprived of his parental rights.
If the child is above ten years old, its consent is also necessary. Only those persons
who are qualified to be guardians can alone adopt; those persons whose interest was
adverse to the child cannot adopt. The request for permission to adopt is to be made to
the guardianship authority of the local Soviet and approved by it. Registration is also
necessary.

Under the Soviet law the adopted child is entitled to all rights and subject to all duties
of a natural bom child, including the right of maintenance and education during
minority or even after attaining majority if unable to work. He has also the right of
inheritance.

Ordinarily an adoption is irrevocable. But if it is found that the new status is proving
t ^7
harmful to the child the adoption might be revoked .

152 Ibid S.7(l)(b) of English Adoption Act 1958

153 Ibid S.7(2) 1958
154 Ibid S.8. 1958
155 Ibid S.26 1958
156 Ibid Parts II,III & IV, of English Adoption Act 1958
157 Friedmann: Law in a Changing Society, p.254
 29

Childlessness is a condition of adoption under Hindu law and under various Civil
Codes. Under the statutes in the common law countries childlessness is not a
condition precedent to adoption. Nor is there any limit as to the number of children to
be adopted such as it is under Hindu Law.

The position in the modem law improved in this respect that the illegitimate is not
considered fillius nulius as he was under English Common law. In some systems of
law the putative father is considered as guardian of his children after the death of the
mother158. But during the life-time of the mother, the putative father's status is not
recognized159, in most of the systems of law. In our submission in those cases where
the putative father does not disown the child and has always been ready and willing to
come forward to help the child and take over the responsibility, why the mother
wishes should be considered so paramount as to reduce the putative father to
nullify160. This is nothing but the continuation of the old doctrine of absolute right of
the parent in respect to children. This doctrine has been done away with in respect to
legitimate children, why should it continue in respect to, it legitimate children. '

The modem law has tried to improve the position of illegitimate children by raising
their status to legitimate children in certain cases. But still a vast majority of children
will still remain unaffected. In those cases where the putative father is known and
feels his responsibility, the hardship attached to illegitimate birth may be avoided, but
still there will be large majority of cases where either the putative father is not known
at all or where the paternity cannot be established 161 unless some measure of public
responsibility is assumed at the governmental level, the condition of illegitimate
children would not improve. Associated with it is also the problem of abandoned and
neglected children. In fact the question assumes importance only when an illegitimate
child is neglected. And it makes no difference whether the neglected and abandoned
child is legitimate or illegitimate.

158 U.S.S.R Civil Code of 1918, Article 183 Soviet Law

159 (1926) I Sov, Uzak, RSFSR, No 13, Item 101
160 Hazard: law and social Changes in the U.S.S.R. pp. 259-60.
161 Take for instance, this has been done by the Hindu Minority and Guardianship Act,1956.